EX-10.2
AMENDMENT TO CONSULTING SERVICES AGREEMENT
INTERMEDIA VIDEO MARKETING CORP.
00000 Xxxxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000 - Fax (000) 000-0000
February 24, 1999
Xx. Xxxxxx X. Xxxxx
President and CEO
Platforms International Corporation
000 Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
RE: Amendment Agreement to Platforms/InterMedia April 6, 1998 Agreement
Dear Xxxxxx,
Pursuant to our telephone conversation today, regarding our verbal
Agreements following your letter of February 22, 1999, and Platforms'
inability to fulfill its obligations B the issuance of additional
Platforms International Corporation free-trading common stock, and
the timely reimbursement of mounting out-of-pocket expenses B we are
submitting this formal Letter of Agreement to memorialize and
document the oral understandings and agreements reached today. It is
understood that the oral understandings and agreements, when reduced
to writing in this document, comprise formal and binding amendments
to our original Agreement of April 6, 1998. All other provisions of
the April 6, 1998 Agreement, including indemnification provisions,
continue to be applicable and enforceable.
1. MARKETING CONSULTING SERVICES SECTION - 1.
Pursuant to our discussions and oral agreements, this document shall
serve to memorialize and formalize your complete satisfaction with
InterMedia's performance and the discharge of its duties and
obligations under the terms and conditions of the Agreement dated
April 6, 1998. You hereby acknowledge that InterMedia has completed
to your full satisfaction all engagement duties and obligations
required, pursuant to the terms and conditions of the April 6, 1998
Agreement, and in compliance with the task priority directives
approved by the President of Platforms International Corporation.
2. TERM OF AGREEMENT EXTENSION (SECTION - 9).
Pursuant to our discussions and oral agreements, this document shall
serve to document, memorialize, and formalize your request for a ONE
(1) YEAR Term Extension of our Engagement from the original
termination date of June 30, 1999 to June 30, 2000, in accordance
with Section 6 of our original Agreement. As previously agreed, the
payment for the one-year extension shall be TWO MILLION TWO HUNDRED
AND FIFTY THOUSAND (2,250,000) SHARES of Platforms International
Corporation free trading common stock. This Term of Agreement
Extension Addendum is hereby incorporated into our original Agreement
of April 6, 1998 and made an integral part thereof by reference. The
same basic terms and conditions of the original Agreement apply to
this Extension Agreement, including all indemnification provisions.
Under the Terms of Extension Agreement, special marketing emphasis
shall be placed on: (i) reinforcing our strategic marketing position
with Americel S.A.; (ii) developing strategic key account
relationships with major telecommunications service providers in
Brail; (iii) developing strategic alliances with prominent,
international telecommunications systems integrators; (iv) acquiring
ANATEL and DAC operating licenses for Brazil; (v) developing
strategic alliances with prominent, international satellite launch companies.
3. COMPENSATION (SECTION - 2).
A. TERMS OF AGREEMENT EXTENSION - MARKETING FEES.
InterMedia hereby acknowledges receipt of ONE MILLION (1,000,000)
SHARES of Platforms Common Stock on November 13, 1998, and
acknowledges that issuance of the balance of stock due for the Term
of Agreement Extension: ONE MILLION (1,000,000) SHARES, plus an
additional TWO HUNDRED AND FIFTY THOUSAND (250,000) SHARES to be
issued directly to Xxxxxx Xxxxx, or a total of ONE MILLION, TWO
HUNDRED AND FIFTY THOUSAND (1,250,000) SHARES of Platforms
International Corporation free trading common stock, will most likely
be delayed until the Platforms compliance audit is completed, but the
stock issuance should be completed no later than May 13, 1999.
B. PAST DUE MARKETING FEES, FINANCIAL REIMBURSEMENTS, AND SECURITY COLLATERAL.
IN recognition of the liquidity and financial constraints of
Platforms International Corporation at this time, Platforms and
InterMedia hereby agree that Platforms shall pay, and InterMedia
shall accept FIVE HUNDRED THOUSAND (500,000) SHARES of Platforms
International Corporation's free-trading common stock as an
additional compensation offset for the continuing delays in
reimbursement of operating costs and associated expenses.
As compensation for: (i) directing and privately underwriting the
cost of marketing operations in Brazil; and (ii) giving up the FIVE
to TEN (5% to 10%) PERCENT of gross sales commissions on sales of the
ARC System in Brazil, as set forth in Section 2.1.1 of the April 6,
1998 original Agreement, Platforms and InterMedia hereby agree that
Platforms shall pay, and InterMedia shall accept a one-time marketing
and sales fee of FIVE MILLION (5,000,000) SHARES of Platforms
International Corporation's free-trading common stock, plus the
reimbursement of out-of-pocket expenses incurred on behalf of
Platforms. The subject shares of Platforms common stock (FIVE
MILLION SHARES) are hereby considered earned and due and owing to
InterMedia as of the effective date of this Agreement.
The total number of Platforms International Corporation free-trading
common stock shares due and owing to InterMedia as of the effective
date of this Agreement, are as follows: (i) Term of Agreement
Extension through June 30, 2000 (1,250,000 shares); (ii) past due and
owing marketing fees (500,000 shares); and (iii) directing and
privately underwriting the cost of marketing operations in Brazil
(5,000,000 shares); or a total of SIX MILLION SEVEN HUNDRED FIFTY
THOUSAND (6,750,000) SHARES of Platforms common stock.
The SIX MILLION SEVEN HUNDRED AND FIFTY THOUSAND (6,750,000) SHARES
of Platforms common stock due and owing to InterMedia and its
Principals shall be issued by Platforms to InterMedia immediately
upon the occurrence of any one of the following events, whichever
occurs first, but no later than May 15, 1999; (i) completion of the
Platforms corporate compliance audit; (ii) execution or the making of
an Agreement for any sale, transfer, license, or lease, or any other
business transaction resulting in the bulk transfer of a
telecommunications transfer, license, or lease, or any other business
transaction resulting in the bulk transfer of a telecommunications
airborne system platform and/or any parent companies; AND/OR (iii)
the surrender and transfer of InterMedia's confidential Americel
strategic key account marketing file to a telecommunications system
integrator, for their marketing, sales, and/or technology project
management and direction.
In order to secure Platforms' rapidly escalating debt to InterMedia
for services rendered and funds advanced to underwrite the cost of
marketing operations in Brazil, and to ensure the issuance of all
Platforms common stock and money due and owing by Platforms to
InterMedia, Platforms hereby grants to InterMedia: (i) a joint and
several security interest in the ARC System Technology, including
worldwide marketing rights; and (ii) an exclusive proprietary
security interest in any and all revenues generated from the sale of
Airborne Relay Communications "ARC" System Licenses in Brazil, until
such time as all stock and money due and owing to InterMedia and its
Principals are paid in full.
Upon issuance of all Platforms free-trading shares of common stock
due and owing to InterMedia, and the payment of all unreimbursed
costs and expenses incurred by InterMedia on behalf of Platforms,
InterMedia and its Principals hereby agree to release and relinquish:
(i) their joint and several proprietary security interest rights in
the Airborne Relay Communications "ARC" System; and (ii) their
exclusive proprietary rights to any and all revenues generated
through the sale of ARC System Licenses in Brazil, in favor of Platforms.
In the event Platforms International Corporation fails to issue the
subject shares of Platforms stock and pay the money due and owing to
InterMedia, in accordance with the stock issuance trigger events
and/or deadline dates set forth in this Agreement, InterMedia shall,
at its sole discretion: (1) exercise its joint and several ownership
title to Airborne Relay Communications "ARC" System Technology to
market, sell outright, and/or use it at its sole discretion; (2)
continue its ARC System marketing efforts in Brazil and keep all
Telecom service business revenues and profits generated from the sale
and/or lease of the ARC System in Brazil or in any other part of the
world; and (3) liquidated damages from Platforms International
Corporation, and/or any of its subsidiaries and/or affiliate
companies, in an amount equal to the unreimbursed costs and expenses
incurred by InterMedia on behalf of Platforms, plus the current
market value of the shares of PLFM stock due to InterMedia and its
principals as of the effective date of this Agreement, or the
prevailing market value of the stock as of the actual collection
date, whichever value is greater.
4. SALES COMMISSIONS AND INCENTIVE COMPENSATION - SECTIONS 2.1.2. AND 2.1.3.
As we progress toward cooperative business agreements with a major
Telecommunications Service Provider ( the possible first ARC System
telecommunications systems provider customer and possible worldwide
Beta Test showcase site), and major Telecommunication Systems
Integrator, it is necessary to document, memorialize, and formalize
our oral discussions, understandings, and agreements concerning
InterMedia's incentive compensation Agreements in accordance and
compliance with the provisions of Sections 2.1.2. and 2.1.3. of our
original April 6, 1998 Agreement.
A. TELECOMMUNICATIONS SYSTEMS INTEGRATOR - BULK SALE/TRANSFER
COMMISSION/BONUS AGREEMENT SECTION 2.1.2. AND 2.1.3.
In the event of a bulk transfer of any value from a T/C System
Integrator to Platforms International Corporation and/or Xxxxxx X.
Xxxxx as a result of a strategic alliance, teaming arrangement, or
any other form of cooperative business enterprise, InterMedia shall
receive a TEN (10%) PERCENT incentive compensation share of the gross
amount of any and all transactions resulting from such a transfer.
Transfer of value, or transaction value, shall be defined as the
total proceeds and other consideration paid or received or to be paid
or received in connection with a transaction (which consideration
shall be deemed to include amounts in escrow), including, without
limitation, cash, notes, securities, royalties, licensing fees,
royalties/licensing fees advances, and other property, transfers made
in installments, amounts payable under consulting agreements or
agreements not to compete or similar arrangements, and contingent
payments, as defined below and received by the company its employees,
officers, agents, and/or it shareholders in the form of transaction
completion bonuses, deferred payments, non-compete agreements,
employment contracts, and/or other deferred performance-based or
contingent payments. Payments of commissions, bonuses, and/or other
forms of incentive compensation due to InterMedia as set forth under
the terms and conditions of this Agreement shall be due and payable
immediately upon receipt by Platforms, Xxxxxx X. Xxxxx, or any of
Platforms' divisions, subsidiaries, parent companies, affiliates,
employees, officers, agents, or directors, of any and all transfers
of value from the T/C System Integrater or any of its subsidiaries
and/or affiliate companies or agents.
B. TELECOMMUNICATIONS SERVICE PROVIDER - SALES COMMISSION AGREEMENT
(SECTION 2.1.2).
In accordance with the terms and conditions of Section III, B-2,
InterMedia surrendered and relinquished its rights to a FIVE to TEN
(5% to 10%) PERCENT of gross sales commission on all sales of ARC
System Licenses in Brazil, as set forth in Section 2.1.2. of the
April 6, 1998 original Agreement, as part of the consideration
exchanged for a marketing fee of FIVE MILLION (5,000,000) SHARES of
Platforms free-trading common stock.
C. CORPORATE MERGER, ACQUISITION, STRATEGIC ALLIANCE, OR BULK SALE.
In the event of a merger, acquisition, buyout, or any transaction
where possession and/or control of most of the assets and/or
intellectual properties of Platforms are transferred to or taken over
by another entity, InterMedia, and each and all of its principals,
shall have the right, at their discretion, to have all or any part of
their share holdings, or, if shares are pending issuance, in
accordance with the terms and conditions of this Agreement, to have
their actual shares of Platforms stock AND any shares of Platforms
stock pending to be issued, bought by the acquiring or new control
company at the higher of market price or market price plus the
premium paid by the acquiring company for Platforms and/or the
control of its assets and/or intellectual properties. Furthermore,
since a takeover of Platforms terminates the long-term investment
potential of InterMedia's stock holdings in Platforms. InterMedia
and its principals shall be entitled to receive a bonus of TEN (10%)
PERCENT of any and all gross proceeds generated by transactions that
result in the transfer of any value to Platforms International
Corporation and/or Xxxxxx X. Xxxxx as a result of a strategic
alliance, teaming arrangement, merger, acquisition, buyout, or any
other form of joint business enterprise. Transfer of value, or
transaction value, shall be fined as the total proceeds and other
consideration paid or received or to be paid or received in
connection with a transaction (which consideration shall be deemed to
include amounts in escrow), including, without limitation, cash,
notes, securities, royalties, licensing fees, royalties/licensing
fees advances, and other property, transfers made in installments,
amounts payable under consulting agreements or agreements not to
compete or similar arrangements, and contingent payments, as defined
below and received by the company its employees, officers, agents,
and/or its shareholders. Contingent payments shall be defined as the
fair market value of consideration received by the Company, its
employees, officers, agents, and/or its shareholders in the form of
transactions completion bonuses, deferred payments, non-compete
agreements, employment contracts, and/or other deferred performance
based or contingent payments. Payments of commissions, bonuses,
and/or other forms of incentive compensation due to InterMedia as set
forth under the terms and conditions of this Agreement shall be due
and payable immediately upon receipt by Platforms, Xxxxxx X. Xxxxx,
or any of Platforms' divisions, subsidiaries, parent companies,
affiliates, employees, officers, agents, or directors, of any and all
transfers of value from the acquiring company or any of its
subsidiaries and/or affiliate companies or agents. In the event
Platforms and/or the acquiring company fail to honor its obligations
to InterMedia and its principals, as set forth in this Agreement,
InterMedia shall, at its sole discretion: (1) exercise its joint and
several ownership title to the Airborne Relay Communications "ARC"
System Technology to market, sell outright, and/or use at is sole
discretion: (2) continue it ARC System marketing efforts in Brazil
and keep all Telecom service business revenues and profits generated
from the sale or lease of the ARC System in Brazil and/or in any
other part of the world; (3) collect liquidated damages from
Platforms, and/or any of its subsidiaries and/or affiliate companies,
in an amount equal to the current market value of all shares of PLFM
stock due to InterMedia and its principals as of the effective date
of this Agreement, or the prevailing market value of the stock as of
the actual collection date, whichever value is greater.
5. ENTIRE AGREEMENT.
This Amendment Agreement is hereby incorporated and made an integral
part of the original Agreement between the parties, dated April 6,
1998, and it updates, formalizes, and records all verbal discussions
and agreements, concerning the stock and financial compensation due
and owing from Platforms to InterMedia and its principals through
February 28, 1999. This Agreement replaces and supersedes any and
all previous discussions and agreements, whether verbal or written,
which apply, specifically, to: (i) the Term of the original
Agreement, dated April 6, 1998;(ii) the stock and financial
compensation due from Platforms to InterMedia and its principals up
to and including February 28, 1999; (iii) security collateral terms
and conditions to ensure the payment of all shares of Platforms
common stock and money due and owing by Platforms to InterMedia and
its principals; (iv) updated due dates for issuance of stock and
financial payments; (v) specific instruction for Platforms stock
certificate issuances; and, (vi) outstanding, due and owing balances
of both financial and Platforms stock compensations. All other
covenants, agreements, terms and conditions of the original Agreement
between Platforms and InterMedia, dated April 6, 1998, as modified by
this formal Amendment Agreement dated February 24, 1999, including
indemnification provisions, continue to be applicable, enforceable,
and in full force and effect.
6. REPRESENTATION BY COUNSEL.
The parties acknowledge that each of them has been represented in the
preparation, negotiation and execution of this Agreement by
independent legal counsel of their own choosing, that such
independent legal independent legal counsel has explained the legal
effect of this Agreement to them, and they fully understand each and
every term, covenant, condition and provision of this Agreement.
7. CONSTRUCTION.
This Agreement has been negotiated between the parties hereto and has
been prepared in accordance with their joint instructions. To the
extent that there is any uncertainty or ambiguity herein, neither
party hereto shall be deemed to have caused it within the meaning of
Section 1654 of the California Civil Code.
8. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but which when taken
together, including counterpart signature pages signed separately but
by all of the parties in total, shall be deemed to constitute one and
the same instrument.
9. HEADINGS.
The titles and headings of the various sections of this Agreement are
intended solely for reference convenience, and are expressly not
intended to explain, modify or place any construction upon any of the
terms or provisions of this Agreement.
10. SEVERABILITY.
If any portion of this Agreement shall be determined to be illegal,
invalid or unenforceable by a court of competent jurisdiction, the
remaining sections and portions of this Agreement shall,
nevertheless, remain in full force and effect, with any such illegal,
invalid or unenforceable portion being deemed deleted.
11. WAIVERS.
No waiver or any breach of any covenant or provision contained herein
by any party shall be deemed a waiver of any proceeding or succeeding
breach thereof or a waiver of any breach of any other covenant or
provisions contained herein. Additionally, no extension of time for
the performance of any obligation or act specified herein shall be
deemed an extension of time for the performance of any other
obligation or act contained herein.
12. FURTHER ASSURANCES.
The parties hereto agree to execute such further documents and take
such further actions as may be necessary or appropriate in order to
carry out the purposes and intent of this Agreement.
13. SUCCESSORS AND ASSIGNS.
This Agreement and each and all of the covenants, terms, and
provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and his/her/their respective successors, assigns,
employees, agents, attorneys, representatives, officers, directors,
shareholders, partners, and insurers.
14. SURVIVAL.
The covenants, agreements, representations and warranties contained
herein shall survive the closing of the transaction contemplated by
this Agreement.
15. TIME OF ESSENCE.
The parties hereto acknowledge that time is of the essence with
respect to each and every term and provision of this Agreement, it
being expressly understood, acknowledged and agreed by the parties
hereto that each date and time specified herein for the performance
of any tern or provision of this Agreement has been the subject of
specific discussion and negotiation between the parties hereto.
16. NOTICES.
All notices or other communications provided for herein shall be in
writing and shall be deemed validly given, when delivered personally
or sent by registered or express mail, postage prepaid, and, pending
the designation of another address. addressed as follows:
A. IF TO PLATFORMS:
Xxxxxx X. Xxxxx
President and CEO
Platforms International Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
B. IF TO INTERMEDIA (AND PRINCIPALS)
Xxxxxxx X. Xxxxxx
President
InterMedia Video Marketing Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
C. SERVICE
Service of any such notice so made by mail shall be deemed completed
on the day of actual delivery as shown by the addressee=s
certification receipt or at the expiration of the third (3rd) day
after the date of mailing, whichever is earlier in time. Any party
hereto may, from time to time, by notice in writing upon the other
party hereto as aforesaid, designate a different mailing address or a
different person to whom all such notices or demands are thereafter
to be addressed.
17. PROFESSIONAL FEES.
Should any party, hereto initiate any action or proceeding to enforce
or interpret any term or provision of this Agreement, the prevailing
party in any such action or proceeding shall be entitled to recover
from the other party all costs and expenses incurred in connection
therewith (including, but not limited to, attorneys, accounting and
other professional fees and costs), which fees and costs shall be in
addition to any other relief awarded by the court and regardless of
whether any such action or proceeding is prosecuted to final judgment.
18. EXPENSES, TAXES.
Each party shall be responsible for its own legal, accounting, and
other similar expenses incurred in connection with transactions
contemplated by this Agreement.
19. NO BROKERS OR FINDERS FEES.
No person, firm or corporation has any right, interest, or valid
claim against Platforms or InterMedia for any commission, fee, or
other compensation as a finder or broker in connection with the
transactions contemplated by this Agreement.
20. ASSIGNMENT.
Other than as provided herein, neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by any
of the parties hereto without the prior written consent of the other party.
21. TERMINATION.
This Agreement may be terminated by mutual agreement of the parties
at any time.
22. GOVERNING LAW:
This Agreement shall in respects of substantive issues be governed
by, and enforced and interpreted in accordance with the laws of the
State of California which are applicable to contracts wholly executed
and wholly performed in said State.
23. DESIGNATED FORUM FOR DISPUTE RESOLUTION.
Any litigation or other legal proceeding arising out of or related to
this Agreement shall be instituted, maintained, heard and decided
exclusively in any court of competent jurisdiction in Los Angeles
County, California. and the parties hereto irrevocably submit to
jurisdiction and venue in such county.
AGREED TO AND EXECUTED:
INTERMEDIA VIDEO PLATFORMS INTERNATIONAL
MARKETING GROUP CORPORATION
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Sole Proprietor President & CEO
